Abandon of Family: Procedural Error and Nullity of Conviction

Imagine for a moment: you are the owner of a flat in Valdoie, and your tenant, Mr Dupont, has not paid his rent for several months. You initiate proceedings, obtain a court decision ordering him to pay. But at the time of enforcement, the court tells you that this is not the right decision, that you referred to another judgment. Frustrating, isn't it? This is exactly what happened to Mr Jean, a resident of the Bordeaux region, convicted for abandonment of family on the basis of a court decision that was not the one referred to in the indictment. The Court of Cassation had to decide: can someone be convicted for facts that were not precisely stated in the summons? The answer is clearly no.

This decision, delivered on 7 January 1969 by the Criminal Division of the Court of Cassation, is a cornerstone of criminal law. It reminds us of a fundamental principle: criminal courts can only rule on the facts set out in the committal order or the summons that referred the matter to them. In other words, a defendant cannot be convicted for a different offence from the one for which he was prosecuted, or on the basis of an erroneous document. This may seem obvious, but in practice, procedural errors sometimes slip through.

For owners, tenants, and all those facing judicial proceedings (particularly for rent arrears or maintenance arrears), this judgment is a lesson: the precision of procedural documents is crucial. A simple error of reference can invalidate everything. Let us decode this case together and see how you can protect yourself.

The facts: a story that happens every day

Mr Jean had been convicted by a judgment of the Bordeaux Court of Appeal, dated 4 January 1968, for abandonment of family. The offence of abandonment of family consists of failing to pay maintenance to one's children or spouse, without legitimate reason, for more than two months. In this case, Mr Jean was prosecuted for failing to pay 24 monthly instalments of maintenance imposed on him by a judgment of the Agen Court of Appeal dated 9 December 1965.

But here is the problem: the committal order (the document that sends the defendant to the criminal court) referred to a later decision, a judgment of the Bordeaux Court of Appeal, which had ordered Mr Jean to pay two maintenance allowances (not just one). The Bordeaux judges therefore found him guilty of abandonment of family for non-compliance with that later decision, even though the facts referred to in the committal order were different.

It is a bit like being prosecuted for unpaid rent in a flat in Belfort, but the judgment convicts you for unpaid rent in Valdoie, in a different building. The facts do not match. Mr Jean challenged this, and the Court of Cassation ruled in his favour.

The reasoning of the court — explained

The Court of Cassation quashed the judgment of the Bordeaux Court of Appeal. Why? Because criminal courts can only rule on the facts that are mentioned in the committal order or in the direct summons (the document that summons the defendant). This is known as the principle of seisin: the court is seised of the facts, not of other facts. If it is seised for non-payment of maintenance on the basis of a 1965 judgment, it cannot convict for non-payment on the basis of a 1967 judgment.

The legal basis is Article 6 of the Code of Criminal Procedure (which governs the seisin of criminal courts), combined with general principles of criminal law. In simple terms: you cannot be tried for what is not in the indictment. This is a fundamental guarantee for the defendant, so that he knows exactly what he is accused of and can prepare his defence.

In this case, the Bordeaux Court of Appeal had used a later judgment to characterise the offence, whereas the committal order referred to an earlier judgment. This is a clear procedural error. The Court of Cassation therefore quashed the conviction, without even examining the merits of the case. This shows that compliance with formalities is sometimes as important as the substance.

What this means for you — practically

For landlord owners: if you are suing a tenant for rent arrears, make sure that your claim (the document that seises the court) precisely mentions the unpaid rents, the dates, and the amount. If you change the facts during the proceedings, the judge may not take them into account. Example: in Belfort, an owner sues his tenant for rents from January to March, but in court, he also claims April. The judge can only order payment for January to March, unless he regularises the situation.

For tenants: if you are being sued for non-payment, check that the claim corresponds to reality. If it mentions incorrect amounts or periods, you can challenge the proceedings. A concrete example: a tenant in Valdoie receives a claim for unpaid rents from 2023, but he has paid part of it. The court cannot convict him for amounts already paid if the claim does not distinguish them.

For real estate professionals (agents, syndics, notaries): this decision reminds you of the importance of precision in procedural documents. A poorly drafted document can render the entire proceedings void. For example, if you draft a notice to pay (formal demand before eviction), ensure it is perfectly clear about the sums owed.

Four tips to avoid this type of dispute

• Scrupulously check dates and amounts in your documents: whether it is a claim, a notice to pay, or a summons, every figure must be accurate. A mistake in a date or reference can invalidate everything.
• Keep all court decisions: if you have obtained a judgment against a debtor (tenant, spouse), keep a copy. In the event of new proceedings, you will be able to cite the correct decision.
• Consult a lawyer to draft documents: procedural law is technical. A professional will avoid errors of seisin that would cost you time and money.
• If in doubt, ask for regularisation: if you realise that the initial document is erroneous, it is sometimes possible to rectify it before the hearing. Do not let it drag on.

Further reading: related case law and developments

This 1969 judgment is part of consistent case law of the Court of Cassation. For example, a judgment of 20 November 2013 (n° 12-85.972) reiterated that the criminal court can only rule on the facts referred to in the committal order, even if other facts emerge during the proceedings. The trend is therefore towards strict compliance with the principle of seisin, with very little tolerance for errors.

In the property field, this also applies to eviction proceedings: if the claim refers to a tenancy agreement, but the judge finds that it is actually a loan for use (free accommodation), he cannot order eviction on that basis. The case must be remitted.

For the future, courts remain attached to this principle, even though recent reforms (such as the digitalisation of proceedings) could create new sources of error. Stay vigilant.

Checklist before acting

• Do I have the right document? Check that the document seising the court (claim, summons) mentions exactly the facts you want to submit to the judge.
• Are the dates and amounts correct? An error of just one monthly instalment can invalidate everything.
• Have I kept the previous court decision? If you are suing for non-compliance with a decision, you must be able to produce that decision.
• Have I consulted a lawyer? Before initiating proceedings, legal advice will save you from costly mistakes.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →